This installment of Hall Render’s Health Law Broadcast series on health care reform is designed to provide you with the insight, analysis and practical suggestions with respect to the various reform initiatives that will affect your organization.
On May 7, 2012, the Centers for Medicare and Medicaid Services (“CMS”) published a final rule (“Final Rule”) implementing Section 2401 of the Affordable Care Act, which established a new Medicaid state plan option to provide home and community-based attendant services and supports. The program is known as Community First Choice Option (“CFC”), and each state, at its discretion, may amend its state plan to include a CFC program. CFC does not replace other existing Medicaid programs that provide for home and community-based services such as the Social Security Act Section 1915(c) HCBS “waiver programs” and Section 1115 demonstration programs. The CFC program merely provides states with an additional opportunity to furnish a “broad service package,” which includes attendant services and subsidies for the costs of transitioning from an institutional to a community setting. Individuals receiving services through CFC also may receive services from other home and community-based long-term care services and supports through other Medicaid state plan, waiver, grant or demonstration authorities. The Final Rule implementing this health reform program is effective on July 6, 2012 and may be found at: http://www.gpo.gov/fdsys/pkg/FR-2012-05-07/pdf/2012-10294.pdf.
A detailed summary of the CFC program follows:
Who Is Eligible to Receive Services from CFC?
Medicaid beneficiaries who would require the level of care provided in an institutional setting, absent the provision of community support services, are eligible to receive services from CFC. Individuals must choose to receive the services provided by CFC. While the regulations provide for annual recertification of the individual’s status as requiring institutional care, states may provide for a permanent waiver of the recertification requirement if there is no reasonable expectation of improvement or significant change in the individual’s condition such that the person would no longer require the level of care provided in an institutional setting.
Home and Community Support Services Furnished by the CFC Program
- Mandatory services include home and community-based attendant services and supports to assist in completing activities of daily living (e.g., eating, toileting, grooming, dressing, bathing and transferring); instrumental activities of daily living (e.g., meal planning and preparation, managing finances, shopping for essential items, traveling around and participating in the community, as well as other activities related to living independently in the community); and health-related tasks (e.g., tasks that can be delegated by a licensed health care professional to an attendant) through hands-on assistance, supervision and/or cueing.
- Optional services include transition costs such as rent and utility deposits, first month’s rent and utilities and the cost of bedding, basic kitchen supplies and other necessities required for transition to the community from an institution. The state also could amend its Medicaid plan to provide for additional services/supports that increase independence or substitute for human assistance such as non-medical transportation or a subsidy to cover the cost of a microwave oven.
Of note, CFC does not cover the cost of room and board (other than the allowable transition costs described above); special education provided under the Individuals with Disabilities Education Act or vocational rehabilitation services under the Rehabilitation Act of 1973; assistive devices and assistive technology services (other than backup systems to ensure continuity of services and supports); most medical supplies and medical equipment; or home modifications. However, many of these items and services may be covered by other Medicaid programs.
How Does the State Determine the Need for Services?
The state must conduct an assessment of the individual’s functional needs, as well as his/her strengths, preferences and goals for the CFC program. Based upon this assessment, a “person-centered service plan” is developed, and the service planning process must be driven by the individual to the maximum extent possible. This means the “plan process” includes people chosen by the individual, occurs at a location convenient to the individual, reflects cultural sensitivities and offers choices to the individual regarding the services and supports and the provider of such services. The plan itself must reflect the individual’s preferences, must be understandable to the individual and his/her supports and be finalized and agreed to in writing by the individual.
Mechanics of Delivery
The services are provided under the direction of the individual receiving services under one of three service models:
- Agency-Provider Model. The services and supports are provided by “entities” under a contract or provider agreement with the state Medicaid agency or delegated entity to provide services. This model allows individuals to have a significant role in selection and dismissal of the providers of their choice.
- Self-Directed Model with Budget. Here, the individual has a person-centered service plan and a service budget with which to hire attendants. States may provide cash or vouchers to those who self-direct their services and supports. Of note, states must provide to individuals with a service budget “financial management activities” to perform such tasks as collecting and processing timesheets of attendants, processing payroll and processing and paying invoices for services.
- Other. States may propose other service delivery models subject to approval by CMS.
States may offer more than one service delivery model as part of the state plan amendment. For all the service delivery models, states must provide or arrange for the provision of a support system that assesses and counsels an individual before enrollment and provides information and guidance so that the individual is able to successfully manage the services and budget.
Benefits and Burdens for States
States that amend their Medicaid plans to include a CFC program will receive an additional six percentage points in Federal Medical Assistance Percentage (“FMAP”) for the provision of CFC services and supports. (FMAP determines the amount of federal matching funds for state Medicaid programs.) However, for the first full 12-month period in which a CFC state plan amendment is implemented, the state must maintain or exceed the level of expenditures for home and community based attendant services provided under the state plan, waiver programs or demonstrations for the preceding 12 months. Further, states must implement necessary safeguards to protect the health and welfare of beneficiaries.
Unfinished Business
CMS has delayed finalization of one provision of the proposed rule, which defined the attributes of a “home and community-based setting,” because this provision caused confusion and disagreement among stakeholders. Accordingly, CMS has redefined what it means to be a “home and community-based setting,” for purposes of implementing the CFC program, and seeks additional comments. The new proposed definition is set forth in a new proposed rule published on May 3, 2012 and can be found at: http://www.gpo.gov/fdsys/pkg/FR-2012-05-03/pdf/2012-10385.pdf.
If you have any questions or would like additional information about this topic, please contact Adele Merenstein at (317) 752-4427 or amerenst@hallrender.com, Rene Remek Savarise at (502) 568-9365 or rsavarise@hallrender.com or your regular Hall Render attorney.
